Darren v MacMahon
[2012] NSWSC 760
•26 June 2012
Supreme Court
New South Wales
Case Title: Darren v MacMahon Medium Neutral Citation: [2012] NSWSC 760 Hearing Date(s): 26 June 2012 Decision Date: 26 June 2012 Jurisdiction: Equity Division - Duty List Before: Stevenson J Decision: Stand the matter over to 29 June 2012 Catchwords: TORRENS TITLE- bankrupt estate - certificate of title - whether issue new certificates of title - practice of the Registrar-General Legislation Cited: Real Property Act 1900 Cases Cited: Texts Cited: Young, Cahill & Newton, Annotated Conveyancing & Real Property Legislation, 2010-2011 Category: Interlocutory applications Parties: Scott Darren as Trustee for the bankrupt Estate of Glen MacMahon (plaintiff)
Donna Maria Therese MacMahon (defendant)Representation - Counsel: Counsel:
B Skinner (plaintiff)- Solicitors: Solicitors:
Mason Black Lawyers (plaintiff)File number(s): SC 2010/421824 Publication Restriction:
EX TEMPORE JUDGMENT (REVISED 5 JULY 2012)
This judgment should be read in conjunction with the judgment I delivered in this matter on 29 June 2012.
By Notice of Motion filed 12 June 2012 the plaintiff, who is a trustee of the bankrupt estate of Glen MacMahon ("Mr MacMahon"), seeks various orders concerning the property at xxxx xxxxxxxxxx xxx Temora, being the land contained in folio identifiers xxx and xxx/xxxxxx ("the Property").
The registered proprietors of the Property are currently the bankrupt, Mr MacMahon, and the defendant, Mrs Donna MacMahon ("Mrs MacMahon").
On 17 February 2012 this Court ordered that trustees for sale be appointed in respect of the Property. On 19 May 2012 the plaintiff, as trustee of Mr MacMahon's bankrupt estate, entered into a contract to sell the Property. The problem that has arisen is that the Certificates of Title cannot be located and, amongst other matters, the plaintiff seeks an order under s 138(3)(c) of the Real Property Act 1900 ("the Act") directing that the Registrar-General issue new Certificates of Title.
The section is one to be enlivened as a last resort: see Young, Cahill & Newton, Annotated Conveyancing & Real Property Legislation, 2010-2011 at [43110.10]. One reason for that is, as is obvious, that it is undesirable to allow duplicates of cancelled folios to be circulating in the community. It is necessary for the Court to approach applications like this with some caution.
Very sensibly, the plaintiff has notified the Registrar-General of his intention to make this application. I am satisfied that the Registrar-General was served with a Notice of Motion and supporting material on 20 June 2012. By letter dated 21 June 2012 the Registrar-General has indicated that he neither consents nor opposes the application (which includes an application for an order that the Registrar-General be added as defendant).
The plaintiff has not been able to locate the defendant. On 22 September 2011, in these proceedings, an order for substituted service was made permitting service of the originating process and supporting material in these proceedings on the defendant at the address of her daughter in Kogarah. There is evidence before me that the defendant's daughter, or her husband, have stated that the defendant collects mail from that address. As a precaution the plaintiff has served the Notice of Motion upon which he now moves and the supporting affidavits by delivering those materials to that same address in Kogarah.
Further, there is evidence that contact has been made with the defendant's solicitor. The solicitor was asked whether he knew where the defendant was. He said he did but, quite properly, refused to reveal her address. The material upon which the plaintiff relies has been served on that solicitor.
I am satisfied that by one or more of those means the defendant is now aware of the application being made today. In all the circumstances I am satisfied I should make an order that no further steps need be taken to serve the defendant.
So far as concerns the location of the Certificates of Title, there is evidence that Mr MacMahon, the bankrupt, says that he last saw the title deeds in 1984 in association with what he described as being a mortgage to the ANZ Bank. Mr MacMahon has stated that "he thinks" the defendant now has the title deeds.
Mr Skinner, who appears for the plaintiff, assures me there is no evidence that any registered mortgage was ever given by Mr and Mrs MacMahon to the ANZ Bank. Nonetheless, enquiries have been made of the ANZ Bank as to whether, a quarter of a century later, it has any record of having the Certificates of Title. No informative response has yet been received from the Bank.
Two things could allay my concern about duplicate certificates of title being abroad in the community.
First, the Registrar-General knows of the plaintiff's intention to make an application under s 138(3)(d) of the Act and yet has not appeared to oppose that order being made.
Second, there is a practice, Mr Skinner tells me, that if an order is made under s 138(3)(d) of the Act, a new edition of the title document is produced by the Registrar-General; existing title documents are cancelled and any search of the property thereafter conducted in respect of the Property would reveal that the current certificates of title have been cancelled. If that is the practice, it would seem to provide protection to any person dealing with any holder of the current title documents.
However, there is no evidence before me of any such practice.
I propose to indicate by these reasons that, subject to the plaintiff adducing evidence that such practice exists, I will make the orders sought by the plaintiff.
I will stand the matter over to 29 June 2012 so Mr Skinner can tell the Court that such evidence is available, or at least what progress has been made in that regard.
I stand these proceedings over before me on 29 June 2012.
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